If plaintiffs CBS Studios and Paramount Pictures seek statutory damages in their copyright infringement lawsuit against the makers of an online Star Trek fan film (see 1609300002), the court should let defendants Axanar Productions and principal Alec Peters present evidence to the jury about all the factors relevant to a statutory damages analysis, including CBS/Paramount's "lost revenues (or lack thereof) and the conduct and attitude of the parties," Axanar/Peters said in a brief (in Pacer) Wednesday in U.S. District Court in Los Angeles. Such evidence would include public statements by J.J. Abrams, director of the 2009 Star Trek motion picture, and Justin Lin, director of 2016's Star Trek Beyond, supporting the end of the suit since the statements show the Axanar defendants "acted in good faith and with the reasonable belief that they were operating within the enduring tradition of accepted and celebrated Star Trek-inspired fan fiction," they said. Axanar defendants said if CBS and Paramount aren't allowed to offer evidence about actual damages to the plaintiffs, they should be precluded from offering evidence about Axanar's purported profit. CBS/Paramount didn't comment Thursday.

The FTC filed a complaint against Qualcomm Tuesday, alleging the company maintained a monopoly in baseband processors used in cellphones and other products. Commissioners voted 2-1 to file the complaint with U.S. District Court in San Jose. Commissioner Maureen Ohlhausen dissented, saying in a separate statement the "enforcement action based on a flawed legal theory ... that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections." The redacted complaint said that "Qualcomm has engaged in exclusionary conduct that taxes its competitors' baseband processor sales, reduces competitors' ability and incentive to innovate, and raises prices paid by consumers for cell phones and tablets." In a news release, the agency, which said the company violated the FTC Act, also alleged Qualcomm received "elevated royalties and other license terms for its standard-essential patents that manufacturers would otherwise reject" by threatening to disrupt the baseband processor supply. Plus, it precluded Apple from getting processors from Qualcomm competitors from 2011 to 2016, the agency said. The commission said it's asking the court to order the company to cease its anticompetitive conduct. Qualcomm responded to us that "the portrayal of facts offered by the FTC as the basis for the agency’s case is significantly flawed. In particular, Qualcomm has never withheld or threatened to withhold chip supply in order to obtain agreement to unfair or unreasonable licensing terms. The FTC’s allegation to the contrary -- the central thesis of the complaint -- is wrong.”

Dish Network's stance that neither the Telephone Consumer Protection Act nor the Federal Tort Claims Act spells out injunctive relief that involves other than traditional, four-part equitable test standards is hardly radical, Dish said in a motion (in Pacer) for leave Wednesday. It asked to be able reply to the DOJ's and FTC's proposed responsive conclusions of law filed earlier this month in U.S. District Court in Springfield, Illinois, in advance of the second phase of the Dish robocall violations trial there (see 1701050045). The company said in its proposed reply that DOJ/FTC haven't contested its showing the injunction they seek would disproportionately harm the company, while harms caused by TCPA and Telemarketing Sales Rule violations "are not substantial." At most, "a modest civil penalty is warranted, because Dish's participation in the telemarketing violations was minimal" since the vast majority of the violations were by a handful of retailers, it said. The federal agencies didn't comment Thursday.

The Supreme Court declined to hear claims of privacy violations brought by Internet-using minors who had data collected about them by Google and Viacom (see 1612290016), denying their petition Monday (see here). The 3rd U.S. Circuit Court of Appeals in June also largely rejected the claims against the companies (see 1606270047).

The traditional equitability test for issuing a statutory injunction doesn't apply in the issue of whether there should be a telemarketing sales rule (TSR) injunction against Dish Network, said the DOJ and FTC in a proposed responsive conclusions of law (in Pacer) for the second phase of the robocall violations trial, filed Wednesday in U.S. District Court in Springfield, Illinois. DOJ/FTC said given the evidence Dish and its retailers repeatedly violated TSR for years, "future violations are not just likely; they are all but assured." The government said Dish claimed catastrophic private effects on its business from such an injunction (see 1604190004), but precedent indicates public equities -- which "favor a broad, strong injunction in this case" -- must receive more weight. DOJ/FTC said even if Dish were right in its assertions that civil penalties could take the place of injunctive relief, that also runs contrary to arguments the company has made against any civil penalties or injunctive relief. The mandatory injunction issue was bifurcated from the rest of the trial that ended Feb. 24 on robocall allegations brought by the federal government and California, Illinois, North Carolina and Ohio (see 0903260144).

The 4th U.S. Circuit Court of Appeals upheld a U.S. District Court ruling that overturned a jury verdict in favor of direct broadcast satellite marketing firm Exclaim Marketing and granted a DirecTV counterclaim for trademark infringement. In an unpublished per curiam opinion (in Pacer) Thursday, Judges Dennis Shedd, Steven Agee and James Wynn said they agreed with the lower court's ruling that, contrary to the jury's finding, DirecTV hadn't violated the North Carolina Unfair and Deceptive Trade Practices Act (UDTPA), and that DirecTV was due more on its counterclaim than the jury awarded. The judges also upheld the District Court's decision denying DirecTV's motion seeking statutory attorney's fees. The Circuit Court said DirecTV's actions -- calling Exclaim call centers on average two to three times a month over the course of six years -- don't rise to the level of egregiously or aggravatingly unfair, as would be the standard under UDTPA. The 4th Circuit also said the lower court didn't abuse its discretion granting DirecTV's counterclaim motion since many of Exclaim's arguments ignore the rationale for prohibiting trademark infringement and Lanham Act language letting plaintiffs recover both actual damages and a share of defendants' profits from infringement. The panel, in affirming the lower court's ruling denying statutory attorney's fees, noted DirecTV doesn't take issue with the court's findings or otherwise engage with its analysis but instead argues it should have used a different analysis. Exclaim didn't comment. The 4th Circuit earlier this year denied a push by Exclaim for a stay of enforcement on the damages owed DirecTV while it appealed the lower court's ruling (see 1606060011). Exclaim sued DirecTV in 2015 alleging multiple UDTPA violations in connection with the DBS company allegedly telling its third-party retailers not to work with Exclaim, and DirecTV countersued for use of the DirecTV name with some of the inbound call center services Exclaim provides.

Vizio is importing massive volumes of TVs containing LED devices that infringe a Nichia patent, Nichia alleged in a complaint (in Pacer) filed Tuesday in U.S. District Court in Marshall, Texas, that seeks unspecified monetary damages and preliminary and permanent injunctive relief. Nichia landed the patent at issue (9,490,411) Nov. 8 from the U.S. Patent and Trademark Office describing methods for manufacturing LED devices with “thermosetting” resins for longer durability. Vizio TVs containing the infringing LED devices are sold in retail stores throughout the Eastern Texas “judicial district,” including Best Buy, Sam’s Club, Target and Walmart stores, said the complaint. Those chains collectively have 29 outlets “in this judicial district,” it said. Vizio said “it has the first or second shelf-space positions at these retailers,” it said. Nationally, those four chains accounted for about 81 percent of Vizio’s net sales during the six-month period ending June 30, 2015, said the complaint, which appeared to lift that data from an SEC registration statement Vizio filed in July 2015 for an initial public offering it never took to market (see 1507260001). Privately held Vizio soon after ceased disclosing sales data as it entered talks to be acquired by LeEco (see 1607260066). That deal still awaits completion. Vizio representatives didn't comment Tuesday on the Nichia complaint.

Dish Network's internal do-not-call (IDNC) list is two separate, distinct lists -- phone numbers for do-not-call requests made to it and numbers for do-not-call requests made to retailers that then shared the numbers with the company -- and a Telephone Consumer Protection Act class-action complaint improperly conflates them, Dish said in a brief (in Pacer) filed Monday in U.S. District Court in Greensboro, North Carolina. Dish dealer Satellite Systems Network (SSN) had no relationship with other retailers on that list or any obligation to honor do-not-call requests made to other retailers, so there's no basis for IDNC class claims against SSN, Dish said, asking that any IDNC class claims based on the retailer list be rejected or that a question be added to the verdict sheet that would let a jury do that. Counsel for plaintiff Thomas Krakauer didn't comment Tuesday.

Dish Network will likely keep violating the Telemarketing Sales Rule (TSR), requiring injunctive relief, DOJ and the FTC said in a proposed conclusions of law filed Tuesday in U.S. District Court in Springfield, Illinois, in advance of the second phase of the lawsuit alleging robocall violations by the company (see 0903260144). The agencies said in the filing (in Pacer) that the likelihood of future Dish violations is proven by 165 million violations it committed between 2003 and 2011, its failure to show that during that time it identified or tried to correct the underlying TSR problems and its ability to use such marketing tactics to continue selling its offerings. They said the company hasn't provided any evidence that would let them and the court evaluate current practices. "Fencing-in relief is appropriate against Dish's internal telemarketing operation because it admitted ... that 'mistakes' were made but never offered a competent explanation for how it came to commit so many violations of the TSR and what it did to ensure additional violations did not occur," DOJ/FTC said, adding that their proposed five-year telemarketing ban on the company would give it "time to rebuild its systems so it can comply with the law." They said the ban on Dish's accepting new orders from past or current Order Entry retailers until it ensures those retailers aren't violating telemarketing laws is justifiable given that OE retailer system "has been rife with shady, illegal practices" since it signed up its first OE retailer in 2003. The satellite-TV provider didn't comment Wednesday.

Due to potential problems stemming from a Sirius XM Telephone Consumer Protection Act settlement website, the deadline for cash TCPA claims was extended from Nov. 26 to Dec. 12 and a fourth round of 5 million email notices to class members was sent out about that extension, counsel for the satellite radio company and for the class-action suit plaintiffs said in a joint memorandum (in Pacer) Tuesday. In the joint filing in U.S. District Court in Newport News, Virginia, the lawyers said the problems revolved around an incorrect filing deadline date on a settlement claims sites that, for the five-plus days it was wrong, could have dissuaded class members from filing a cash claim for part of the $35 million SiriusXM settlement regarding the company's alleged TCPA violations (see 1606080019). The company laid out its corrective steps, saying it's visited conductor sites with an expert to confirm the changes made by those vendors to separate autodialed systems from the manual dialing systems used for dialing mobile phones. A fairness hearing on the settlement is scheduled for Tuesday.